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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, December 8, 2010

Court stops NYPD from retaliating against officers

If you want to know what the American worker is paranoid, take a look at what happened to police officers working for the City of New York. They agreed to become prominent plaintiffs in a class action against the City, and they found themselves being disciplined over the testimony they gave in that case. The federal courts put a stop to this.

The case is Mullins v. City of New York, decided on November 16. Here's what happened. Over 4,000 police officers sued the city, alleging systematic violations of their overtime rights under Fair Labor Standards Act. To streamline things, the parties agreed that the City would depose a limited number of "test plaintiffs" from various job categories. After those officers gave testimony, the City went after some of them, claiming they gave inconsistent and false testimony in violation of City rules and demanding that they provide Internal Affairs certain work-related documents. The union called the document collection a "raid," and the plaintiffs themselves worried that this was retaliation for bringing the lawsuit. Some of the officers considered backing out of the lawsuit.

District Judge Scheindlin enjoined the City from engaging in this kind of retaliation, and the Court of Appeals (Pooler, Katzmann and Hall) affirms. After ruling for the first time that the trial court may rely on hearsay testimony in resolving preliminary injunction motions, the Second Circuit says the injunction was proper because NYPD's actions after reviewing the deposition transcripts suggest the plaintiffs were victims of retaliation in violation of FLSA. The sequence of events was particularly questionable. After NYPD got the transcripts, Internal Affairs began collecting plaintiffs' work-related documents, an unusual procedure according to the Court of Appeals, since IAB normally does not request documents like this (Administrative Lieutenants or other local officers do).

The City had a defense to the retaliation claims. It argued that the allegations of perjury were time-sensitive, requiring immediate investigations during the pendency of the FLSA case. But this does not hold water. The City requested documents from all the test plaintiffs, not just those suspected of perjury. For one Sergeant, a superior officer attended his deposition even before he was accused of perjury. This was an intimidation tactic. While the City claimed this was a time-sensitive process, justifying immediate review of the officers' work records, in fact, NYPD did nothing for almost a year after it received the deposition transcripts.

So the NYPD's investigations had retaliation written all over it. Since the police officers were able to claim irreparable harm without the injunction (as numerous plaintiffs were going to withdraw from the case to avoid punishment), Judge Scheindlin properly granted the injunction.